Justia U.S. 6th Circuit Court of Appeals Opinion Summaries

Petitioners, husband and wife citizens of Guatemala, were eligible for suspension of removal under the Nicaraguan Adjustment and Central American Relief Act of 1997, 111 Stat. 2160, but their lawyer never cited NACARA during removal proceedings before the immigration judge or the Board of Immigration Appeals and failed to notify the couple of the decisions. After the husband was taken into custody they learned of their eligibility and moved to reopen their case. The Board denied the motion. The Sixth Circuit vacated and remanded. The Board retains jurisdiction, although the husband has been deported, and the doctrine of equitable tolling applies to the wife's petition. The couple was diligent in pursuing their rights after learning of their lawyer's ineffective assistance; the Board can explore the issue of their diligence prior to revocation of their work permits.

After being arrested and deported twice, the defendant was again arrested and entered a plea of guilty to unlawful re-entry under 8 U.S.C. 1326. The district court imposed a sentence of 96 months of incarceration; 59 months longer than the guidelines maximum. The Sixth Circuit remanded. Without holding a hearing, the district court again imposed a 96-month sentence. The Sixth Circuit again vacated and remanded. On a general remand, the defendant is entitled to a resentencing hearing at which he may exercise the right to be present and allocute as provided by the Federal Rules of Criminal Procedure; when a plenary resentencing hearing is held, the district court must state, in open court, the reasons underlying the imposed sentence. The court declined a request for assignment to a different trial judge.

Garcia became a lawful permanent resident of the United States in 1995. In 1998 he pled guilty to possession of marijuana with intent to deliver. An immigration judge refused to cancel the Department of Homeland Security's removal proceedings. The Board of Immigration Appeals affirmed. The Sixth Circuit agreed, reasoning that Garcia was convicted of an aggravated felony under 8 U.S.C. Sec. 1101(a)(43), which refers to state offenses considered drug-trafficking crimes, defined as state offenses "punishable as a felony." Although 21 U.S.C. Sec. 841(b)(4) provides that "distributing a small amount of marihuana for no remuneration" is a misdemeanor, punishable by not more than one year in prison, Michigan law provides that conviction of intent to deliver any amount of marijuana is punishable by up to five years in prison. The state law conviction presumptively corresponds to the federal felony and the government was not required to prove the amount of marijuana or that a remunerative exchange occurred. Because Garcia admitted to intent to deliver, he was not entitled to a waiver available for simple possession. The court declined to consider a claim of ineffective assistance of counsel.